Hyman Rosen wrote: > > Alexander Terekhov wrote: > > ROFL! > > http://www.softwarefreedom.org/resources/2009/jacobsen-amicus-brief.html > > Since your thought processes are not like those of > rational human beings, I think you need to quote > more selectively from the brief the lines you find > amusing.
Does the following help, Hyman? "Amicuss request for a presumption of irreparable harm is directly contrary to the Supreme Courts holding in Winter Amicus Curiae Software Freedom Law Center (Amicus) argue that a copyright holder should be entitled to a presumption of irreparable harm when seeking a preliminary injunction. While this presumption existed at one time under federal copyright law, it was critically injured by the Supreme Court in eBay v. MercExchange, LLC, 547 U.S. 388, 391 (2006) and completely eviscerated in Winter in late 2008. Footnote>> It is worthwhile to note that the open source license quoted in Amicuss brief, the GNU General Public License v2.0 is not the license at issue in this case. See Amicus Brief at 4-5. The Artistic License 1.0 governed Jacobsens Decoder Definition Files during the alleged infringing conduct as discussed in detail in the opinion in the first appeal of this case (A1579). <<Footnote Prior to eBay, a plaintiff seeking a preliminary injunction under federal copyright law who demonstrated a likelihood of success on the merits of a copyright claim was entitled to a presumption of irreparable harm. Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999). In 2006, however, the Supreme Court eradicated the presumption of irreparable harm to motions for permanent injunctions in the patent infringement context, holding that a Plaintiff seeking a permanent injunction must demonstrate that the traditional equitable factors for granting an injunction have been met. eBay Inc., 547 U.S. at 391. As time went by, federal courts (including this Court) applied the logic of eBay to motions for injunctive relief in copyright and trademark cases and also applied the strictures of eBay to preliminary injunctions. Katzers brief in opposition to Jacobsens preliminary injunction motion canvasses this case law. If any doubt existed by late 2008, it was completely eviscerated by Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008) where the Supreme Court confirmed that a plaintiff seeking a preliminary injunction must establish that he is likely to suffer irreparable harm in the absence of preliminary relief. Winter at 374. The Ninth Circuit has acknowledged the Supreme Courts recent expatiation of the proper standard for preliminary injunctive relief stating that the former standard used by the Ninth Circuit was much too lenient and that [t]o the extent our cases have suggested a lesser standard, they are no longer controlling or even viable. American Trucking Assns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). See AR 782-783. The District Court correctly summarized the change in the legal standard in its Order: Footnote>> Jacobsen does not take issue with the legal conclusion that the presumption of irreparable harm no longer exists for preliminary injunctive relief for copyright claims. <<Footnote Initially, when this matter was before the Court on a motion for preliminary injunction, federal copyright law provided that a plaintiff who demonstrates a likelihood of success on the merits of a copyright claims was automatically entitled to a presumption of irreparable harm... However, because of the passage of time, the governing law has changed. Now, a plaintiff is not granted the presumption of irreparable harm upon a showing of likelihood of success on the merits. Instead, a plaintiff seeking a preliminary injunction must establish that... he is likely to suffer irreparable harm in the absence of preliminary relief... (citing Winter). A11-A12. Amicuss brief, however, requests that this Court ignore controlling Supreme Court law and apply a presumption of irreparable harm for all preliminary injunction motions brought by open source license holders. Amicus state that two harms must certainly, always, occur the instant an open source license is violated: (1) the developer is deprived of the rights reserved in the license, and (2) the developers relationship with other licensees who never become aware of their rights is severed. Footnote>> As discussed supra, there is no evidence in the record that Jacobsen suffered either of these potential harms. <<Footnote Amicus Brief at 13. These harms are inevitable and certain and developers always suffer these harms when an open source license is violated. Id. Amicus are requesting that this Court presume that Katzer caused Jacobsen irreparable harm based solely on allegations that infringement occurred and without the proffering of any evidence that any harm will likely occur. This is contrary to controlling law. Amicuss citation to authority is inapposite and unavailing. None of the cases cited by Amicus address the preliminary injunction standard post-Winter. Additionally, Amicus inaccurately cites Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir. 1992) for the proposition that copyright doctrine favors injunctive relief when the resulting harm is noneconomic. Amicus Brief at 9. This case does not stand for this proposition at all, and, in fact, never mentions the word copyright. Regardless, Amicuss unsupported statement regarding the favorability of injunctive relief is certainly not the state of the law post-Winter. Amicuss request to apply a presumption of irreparable harm to Jacobsen is contrary to the law and should be rejected." http://terekhov.de/2009-1221/AppelleeBrief.pdf regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
